From The Westminster Review.

THE AMERICAN REPUBLIC - ITS STRENGTH

AND WEAKNESS.*

the time of the War of Independence, and for several years thereafter. A sense of common danger and the necessity of a THE material power displayed by the common resistance to the government of great American Republic during the late Great Britain, first produced a union of Civil War, and the magnanimity and the colonies, and enabled them to secure moral grandeur exhibited at its close; the the object they had primarily in view. political and commercial influence it exerts But the imperfections of the system emamong other nations; its wonderfully bodied in the " Articles of Confederation" rapid increase in territory, wealth, and soon became apparent, and the Federal population; and the thought of the mag- Government, being without any direct nificent future which appears within its sanction for its laws, and entirely dependgrasp, would at any time render it a sub-ent upon the co-operation of the States ject worthy of our careful contemplation. for the maintenance of its authority, and But at the present moment, when a neigh- even for its very support, soon found itbouring nation, with such tremendous self powerless and penniless. The respectcapacities for good or evil, having drunk to its very dregs the sparkling cup of an insinuating but enervating Imperialism, has awakened to a sense of its degradation, and is invoking the genius of Republicanism as the angel of its redemption, it is more than ever our duty and interest to study the lesson to be learned from Republicanism's best exemplar.

We propose, therefore, to consider the American Union first, as regards the sources of its strength; and, secondly, as regards the dangers and defects of its governmental system. The complex character of that system is but imperfectly understood in Europe. Unlike the simple Republics of former times, it owes its origin and strength in great measure to the political communities which preceded it and co-exist with it, each having its own peculiar functions to discharge the latter being independent of the former and of each other as to all matters of purely local concern and the Union having supreme authority as to all subjects of national importance. Equally unlike all simple confederations, the general government acts directly upon individuals, thus compelling obedience to its mandates, instead of requiring the aid of the separate States to enforce them.

It is, therefore, more properly to be regarded as a confederated Republic than as a republican Confederation. Such a confederation did indeed exist in America at

Commentaries on American Law. By JAMES

KENT. Eleventh Edition. Boston: Little, Brown, and Co.

ive sovereignties of which the Confederation was composed would not yield a voluntary obedience whenever a regard for their own suposed interests, or a mean and exaggerated jealousy of one another or of the central power, counselled them to the contrary; and if they refused or neglected to obey, compulsion was out of the question.

The wisdom of Washington and other liberal, enlightened, and patriotic statesmen, fortunately came to the rescue, and through their earnest and persevering efforts the foundations of the present Union were laid upon the ruins of the fallen Confederation.

And here it may be remarked, in passing, that the originators of the late rebellion in America, stepping backward, as they did, over a hundred years of steadily advancing civilization, and laying the corner stones of their new system of government upon the miserable fact of human slavery on the one side, and upon the equally miserable theory of a sovereignty over sovereigns on the other, showed themselves not only utterly devoid of political morality, but equally deficient in political wisdom.

The work of Washington and his illustrious compeers was embodied in a written Constitution, in which the foresight of its framers was manifested by the insertion of a clause providing for its amendment whenever in the progress of events it should appear either to Congress or to the State Legislatures that such amendment was desirable, and three-fourths of

the States should unite in ratifying the | claiming lands under grants of different States, changes so proposed.

Similar written Constitutions exist in every State of the Union, and to such embodiments of their organic law, unchangeable except by the direct act of the people of the State, or of the United States, as the case may be, is undoubtedly in a great measure due the comparative stability of American institutions. It was not to be supposed, however, that any written instrument could be so worded as to leave no room for doubt as to the true interpretation of all its provisions, and the extent of their rightful application to the numberless new questions which must continually present themselves for solution in the history of a great and growing people.

Nor was it to be supposed that in the immense mass of legislation emanating from Congress enactments might not frequently be found which, owing to inadvertence or to political excitement, would be more or less at variance with the organic law of the land.

and between a State, or the citizens thereof, and foreign States, citizens, or subjects."

This power being afterwards limited by the 11th amendment, which prohibited, by implication, the bringing of suits in the United States courts against a state by citizens of another state or country.

The wisdom of these provisions is obvious to the philosophical student, and their immense importance to the stability and harmony of the Union has been abundantly shown by experience. "No government," moreover, as has been well observed

"ought to be so defective in its organization as not to contain within itself the means of se

curing the execution of its own laws. If each state was left at liberty to put its own construction upon the Constitutional powers of Congress, and to legislate in conformity to its own opinion, and enforce its opinion by penalties, and resist or defeat, in the form of law, the legitimate measures of the Union, it would destroy the Constitution, or reduce it to the imbecility of It was furthermore necessary, in order the old confederation. To prevent such misto secure certain of the objects specified chief and ruin, the Constitution of the United in the preamble to the Constitution (such States most wisely and most clearly conferred on as the formation of a more perfect Union, the judicial department the power of construing the establishment of justice, and the insur- the Constitution and laws in every case, and of ance of domestic tranquillity), that a com- preserving them from violation in every quarmon arbiter should be appointed to de-ter, as far as judicial decisions could preserve cide in all cases where the rights of differ- them."-(1 Kent's Commentaries, 11th edition, ent States, or of the citizens thereof, were P. 852, citing Cohens v. Virginia, 6 Wheaton, 264.) opposed to one another, or in which the rights and interests of the United States were involved.

The Constitution in fact expressly declares that "this Constitution, and the laws of the United States, which shall be made in pursuance thereof. . . . shall be the supreme law of the land: and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding;" and further that "all executive and judicial officers both of the United States and of the several states shall be bound by oath or affirmation to support this Constitution." It would seem to follow, ex necessitate rei, that the

“To all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime juris-powers to decide whether the laws of any diction; to controversies to which the United state, or of the United States, are in any States shall be a party; to controversies between respect at variance with the federal Contwo or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State

stitution, should be lodged in the Supreme Court of the Union as final arbiter. Hence, Sec. 2, Art. 3, of the Constitution

provides that "in all the other cases be- | power to change even the Constitution of the fore mentioned" (including all cases aris- Empire, and of Parliament itself (“Cabiing under the Constitution, laws, and treaties net Lawyer," 25th edition, p. 5). In the of the United States), "the Supreme Court United States, on the other hand, "It has shall have appellate jurisdiction, both as to become a settled principle that it belongs law and fact, with such exceptions, and to the judicial power, as a matter of right under such regulations as the Congress shall and of duty, to declare every Act of the make." In pursuance of the duty thus de- Legislature made in violation of the Convolved upon it, the Judiciary Act of 1789 stitution, or of any provision of it, null was passed by Congress, under which it and void." (1 Kent, 488.) was provided

To secure the independence of the United States provides that all its judges national judiciary, the Constitution of the shall hold their offices during good behaviour, and that their compensation shall not be diminished during their continuance in office. That this judiciary, and especially the Supreme Court of the United States has been equally illustrious for its talents as for its virtue and patriotism, and that it has rendered the most effective services to the cause of well regulated liberty, by establishing a system of national jurisprudence, founded upon common sense, compacted by sound and comprehensive reasoning, adorned by clearness and eloself to the conscience by its dispassionate quence of statement, and commending it

“That a final judgment or decree in any suit in the highest court of law or equity of a State may be brought up on error in point of law to the Supreme Court of the United States, provided the validity of a treaty or statute of, or authority exercised under the United States, was drawn in question in the State Court, and the decision was against that validity; or provided the validity of any State authority was drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favour of its validity; or provided the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States was drawn in question, and the decision was against the title, right, privilege, or exemption specially claimed under the authority of the Union." (1 Kent's Com-impartiality, cannot be denied by any disinmentaries, p. 320, citing Act of Congress of September 24th, 1789, Sec. 25).

And here it may be remarked that the power exercised by American tribunals of declaring invalid the laws of Congress, or of a State Legislature, as being repugnant to the Constitution of the United States, or of the particular State, as the case may be, is something quite unknown in England or France, and almost unintelligible to a French or English jurist. In France, under the late Empire, to the Senate alone belonged the right of interpreting the Constitution, and of opposing the promulgation of laws contrary to the Constitution (Const. of 1852, Arts. 26, 27) – all laws once promulgated being binding upon all, and no judge being allowed to refuse a decision on the ground of the silence, obscurity, or insufficiency of the law (Code Nap., Arts. 14).

In England the Parliament is declared to have sovereign and uncontrollable authority in the making of the laws, with

terested critic.

The legislative power of the Union is vested in a Congress, consisting of a Senate and House of Representatives. The Senate is composed of two Senators from each State, chosen by the Legislature thereof for six years. Representatives are chosen every second year by the people of the several States, being apportioned among them according to their respective numbers. The importance of the division of the legislature into two branches, was ably vindicated by President Adams in his " Defence of the American Constitutions," and has been universally recognized in America ; and yet the French, disregarding the experience of other nations in ancient and modern times, have clung with singular tenacity, to the system of a single house, first in 1791, then in '93, again under the Republic of 1818, and lastly, under the late Empire - for the functions of the Senate under the Constitution of 1852, were as regards France itself (its power as to the colonies being more extensive)

almost entirely of a negative character, This veto power has been exercised by being restricted to the right of opposing every American President, but by none to the promulgation of laws at variance with such an extent as by the late President the express provisions of the Constitution, Johnson. or the fundamental principles of the social By his action in this respect he secured compact, (Const. Tit. 4: Décret., Fév. 3, the censures of many for his stubbornness; 1861, Art. 10). Until they shall have but it should be remembered that stubadopted the Anglo-American system of bornness, if sometimes wearisome and unlegislatures, consisting of two independent attractive, is often honest in its motive, bodies, one of which is not elected directly heroic in its action, and beneficial in its by the people, it is useless to look for mod-results. eration, justice, and stability in the political development of France. In the United States, as in England, all bills for the raising of revenue, must originate in the lower house; but the Senate possesses the power, which is not conferred upon the House of Lords, of proposing amendments to such bills. Every bill, in order to become a law, must, generally speaking, not only be passed by a majority of votes in each house, but must also receive the President's signature. If, however, he disapprove the bill

"he shall return it with his objections to that house in which it shall have originated, who shall enter the objections at large, on their journal, and proceed to reconsider it. If after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall

become a law."

At all events, the stubbornness of the late President was fully equalled by that of both houses of Congress, who repeatedly passed their extreme measures by the requisite two-thirds vote, in direct opposition to the Executive veto. It should be remembered, too, that in several instances the laws so passed were afterwards decided by the Supreme Court to be unconstitutional and void, and the President's course in opposing their enactment thereby perfectly vindicated. It should also be remembered that the President claimed (and we believe with reason) that he had, as in duty bound, caused all the laws to be faithfully executed, whether they had met his approval or not; while, on the other hand, it will be to the lasting discredit of Congress that they sought to revenge themselves not only upon the Executive, by means of an impeachment in which the facts proved were ridiculously out of proportion to the offences charged; but also upon the Supreme Court, by certain acts of legislation calculated to reduce it from its lofty constitutional position as an independent co-ordinate branch of the government, to that of a secondary power, subservient to the will of the legislature. When the passions of the day shall have subsided, it will doubtless be recognized by the student of history as a most happy circumstance for the liberties of America, The provisions of the Constitution in that while a formidable party was, if not this respect adopt a happy mean between thirsting for revenge, at least strongly two extremes. While requiring the Execu- tempted to injustice towards a vanquished tive sanction to all bills which have simply foe by the very consciousness of power, received a majority of votes in the legisla- the President of their own election should tive body, thus differing on the one hand have been found honest and firm enough from the French "Constitution de l'an to fulfil his constitutional obligations even VIII" (1 Zachariæ, Dr. Civ. Fr., 3rd ed., at the expense of political suicide. p. 45, n. 8) which required no such sanction at all-it allows a bill passed by a two-thirds vote to become law against the will of the Executive, thus differing, on civil officers of the United States, shall be re"The President, Vice-President, and all the other hand, from the late Imperial moved from office on impeachment for, and conConstitution, as well as from the Constitu-viction of, treason, bribery, or other high crimes tion of England, under both of which the and misdemeanours. The House of RepresentExecutive sanction is in all cases indispen-atives shall have the sole power of impeachsable (1 Zachariæ, ib.; Cabinet Lawyer, p. ment. The Senate shall have the sole power to 13). try all impeachments . . and no person

The veto power thus conferred on the President, is intended to prevent hasty, passionate, and unconstitutional legislation; and taken in connection with the power conferred upon the judiciary of deciding, in any case brought regularly before it, that a law is void for unconstitutionality, serves as a salutary check upon the legislature.

The clauses of the Constitution on the subject of impeachment are as follows:

....

necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, The importance of these provisions is trust, or profit, under the United States; but obvious. It is certainly one of the causes the party convicted shall, nevertheless, be liable of England's greatness and glory that and subject to indictment, trial, judgment, and freedom of speech and of the press are punishment according to law.". "The invio-here so well established. How little is lability of any officer of government," says really known in France as to freedom of Kent, "is incompatible with the republican the press will be obvious to any one who theory, as well as with the principles of retrib- will run his eye over the numerous restricutive justice.' tive enactments upon the subject published The process of impeachment is, however, among the "Lois Usuelles," as passed unso difficult and expensive in practice that der every form of government from the it is not likely to be often employed. In year 1810 down to the present daypoint of fact, recourse has been had to it among which are particularly to be obbut sparingly; and yet the very fear of it served those which require that the printer may not infrequently have had the good of a newspaper obtain a special license, effect of rendering an appeal to it unnec- and deposit a large amount as security in essary. At all events, the ill-advised sneer the hands of the authorities; that a decsome time since indulged in by the ene-laration be made containing the title of mies of republican institutions, that in the the paper, the names and residences of the model Republic the very Head of the na- proprietors, the responsible editors, and tion was on trial for alleged "high crimes and misdemeanours," was triumphantly met by the reply, that in no other country of the world could the Chief of the State be punished for his crimes against the people thereof, however atrocious and undeniable they might be, by judgment had upon an impartial trial before a constitutional tribunal wherein the majesty of the law should be most signally vindicated in the very person of him who of all others was most bound to "see that the laws be faithfully executed." Whether such a peaceful method of imposing a penalty for past offences, and preventing a renewal of similar ones, is not to be preferred to the impunity of tyrants on the one hand, or the bloody revenge of revolution on the other, is a question which need only be asked to be answered.

the printer; that every article be signed by the writer thereof, &c.; and those also which prescribe penalties for all attacks upon the institutions or authorities of the State, for publication of false news, and even for any report of the proceedings in suits against the press. The rigour with which these laws have been recently enforced, not only under the repressive régime of M. Rouher, but also under the (so-called) Liberal Ministry of M. Ollivier, is within the memory of all.

As regards the liberty of bearing arms secured by their Constitution to the people of the United States, it need only be remarked that it is of vital importance in a republican country, the policy of which is totally opposed to the maintenance of a large standing army. It is the only security against insurrection or foreign For the further security of the citizen aggression, and a very considerable one, against oppression, certain articles of if any such be needed, against any attempt amendment, in the nature of a Bill of at usurpation of power on the part of the Rights, were proposed by the First Con- Executive. Had such a liberty been segress, in 1789, and having been ratified by cured to the people of France, it is evithe Legislatures of the requisite number dent that it would not have been so enof States, became a part of the Constitu-tirely at the mercy of the Emperor, and tion. consequently, so nearly at the mercy of a

The first two of these are as fol- foreign foe as it has lately become. lows:

II.

"Art. 1. Congress shall make no law re- HAVING thus considered some of the specting an establishment of religion, or prohibiting the free exercise thereof, or abridging principal sources of the political strength the freedom of speech, or of the press, or the of the great Republic, we proceed to exright of the people peaceably to assemble and to amine briefly what appear to us as among petition the Government for a redress of griev-its elements of weakness. One of these is the shortness of the term for which repreIt is, we are

ances.

"Art. 2. A well-regulated militia being sentatives are elected.